Borders as a “no-privacy” zones

There’s little consensus on how to balance the current conflict between privacy and security.

US-Canada Boundary at Overton Corners, NY. Lacolle, Quebec to Champlain, New York. Source: Wikipedia

US-Canada Boundary at Overton Corners, NY connects Lacolle, Quebec to Champlain, New York. Source: Wikipedia

A sizable faction says something along the lines of “Hey, if you have nothing to hide, then there’s no problem” and accepts “whatever it takes” to protect public safety.

The opposite view point feels current practices clearly violate U.S. Constitutional protection specified by the Fourth Amendment against warrantless search and seizure.

Benjamin Franklin’s pithy quip is often invoked too: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” (Sidenote: this NPR piece asserts this current use mis-appropriates how Franklin first meant that comment.)

To all that add the “anything goes” nature of border crossings.

Many do not know how few rights exist in that area. Others wish the courts would clarify that picture.

As reported in Canadian news sources, Quebec resident Alain Philippon found all this out first hand when he recently refuse to provide the password for his cell phone to airport border agents inspection in Halifax last Monday. He was returning from time spent in the Dominican Republic.

Philippon was charged with “hindering” under section 153.1 of the Customs Act, according to Canadian Border Services Agency representative, If found guilty, he could be facing a fine between $1,000 – $25,000 and up to a year in jail.

According to CBC coverage:

Philippon did not want to be interviewed but said he intends to fight the charge since he considers the information on his phone to be “personal.”

Supreme Court rulings in Canada on cellphone privacy have been mixed. But those decisions were for internal/domestic cases.

Travelers crossing Canadian borders have a “reduced expectation of privacy”, according to Rob Currie, director of the Law and Technology Institute at Dalhousie University. Again, from CBC:

Currie said the issue of whether a traveller must reveal a password to an electronic device at the border hasn’t been tested by a court.

“This is a question that has not been litigated in Canada, whether they can actually demand you to hand over your password to allow them to unlock the device,” he said. “[It’s] one thing for them to inspect it, another thing for them to compel you to help them.”

Currie said the obstruction case hinges on that distinction.

When it comes to borders, you may be surprised at what’s allowed. Or you may be pleased, depending on your security priorities.

Here’s how one informational website (exbordercrossing) spells it out:

Border Searches
Courts have granted customs agents extensive rights to search, without probable cause, literally anything you have with you when you cross the U.S. / Canadian border.   U.S. courts have upheld the U.S. CBP’s right to perform searches that might otherwise violate a U.S. citizen’s Fourth Amendment rights.  Both the U.S. and Canadian border services assert the right to search –  and seize –  any electronic or digital storage devices such as laptops, tablets, discs, digital cameras, cell phones, and hard drives.

What can they search on your electronic devices?

Border agents have successfully asserted the right to examine all files on all electrical devices including personal or business financial information, music files, and lists of Web sites you have visited.   You can be forced to open encrypted files or the government can take the time to do it themselves.  Random searches are allowed.   They may also  also freely share the data from those computers — personal and business records, web-site visits, email – with other governmental entities.

No compensation is provided for any losses suffered by the owners of laptops or other media as a result of the seizure even if the contents are destroyed by government.  A laptop can be held for over a year and the owner may not be allowed to get a copy of the contents of their hard drive.

This policy covers all individuals without exception. It has been reported that 6,671 travellers had laptops, cameras and cellphones searched between Oct. 1, 2008 and June 2, 2010 and that around 3,000 were seized.  This right also extends to searches of documents, books, pamphlets and other printed material.

That same site goes on to answer the “what should you do?” question.

* If there is something you don’t want seen – don’t have it with you.  You can always use cloud services such as Dropbox, Google drive, or Microsoft Skydrive to store important information and access it later. This is your most effective way to protect sensitive information.

* Try to minimize the appearance that you are trying to conceal something.  Pack your bags as neatly as possible. Wrap computer cables neatly so everything  can easily be viewed at a glance and does not look like something may be hidden.

* Always make sure you have a backup of your digital media before you cross the border.

I’ve included the “what should you do” advice not to help criminals or terrorists. Presumably they understand their own need for concealment. But plenty of “just folks” with nothing criminal to hide remain at risk of the frustration (embarrassment?) of having their private lives examined. Having a back up – in case a laptop is seized and not returned for a year or so – would be quite wise.

This stress between protection and privacy is far from settled. It also seems unlikely there is any way to satisfy both sides of that spectrum.

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12 Comments on “Borders as a “no-privacy” zones”

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  1. Pete Klein says:

    All of the above points out all the good reasons not to cross the border in any direction.
    Of course, both Canada and the USA want people to cross the border because they want all the money people spend in the country they are visiting. Governments do like to have their cakes while eating them with great gusto.
    But might they get the idea that they have gone hog wild with security if no one crossed the border for a week?
    The last time I crossed the border was in October, 2001. I didn’t enjoy the time it took.
    I have no intention of crossing the border again unless we can go back to the days of “Where are you going and when will you return?”

  2. knuckleheadedliberal says:

    People forget that Canada is really another country from the US. Maybe that is because we are so unused to crossing borders in a car, at least up north. If you were searched crossing the border to Mexico, or rather crossing from Mexico to the US – because it is pretty rare to have much difficulty driving into Mexico. I was once involved in having a car pretty much dismantled at the Mexico border because an idiot friend didn’t bring any ID whatsoever to a foreign country.

    There is also the sense of entitlement blond haired blue eyed people seem to feel wherever they travel even just at airport security flying within the country. Is it because they get a small glimpse into the way blacks or Hispanics, or Muslims are treated all the time? When you travel you find out that you are not special just because your mom told you so. You are just another piece of ambulatory meat. Start using the thinking meat between your ears and plan ahead.

  3. Pete Klein says:

    As it was with Canada, so it was with Mexico.
    When in the Navy, I often crossed the border without incident and hardly any question asked. Even brought back a switchblade without declaring it.
    What the Department of Homeland Security is doing is the same thing stop and fisk is doing to the relationship between the police and blacks. It is making people feel – “If you don’t trust me, why should I trust you.”

  4. Two Cents says:

    I am not as concerned with my thinking as I am with theirs.
    by appearances I may fit a profile that would warrant a cavity search?
    who determines from time to time what that profile is, as it is ever changing. understandably.

    remember the posters in the airport of the jean jacketed, oddly hair-styled, bearded or mustachioed or partially 5- o’clocked shadowed, cowboy boot wearing guy, with ray-ban’s, warning he was the drug dealer?
    he looks like half the retired marines I know, and a couple of the blake shelton/ toby keith wanna-be’s friends, look now.
    meanwhile the people who fit the current acceptable profile look saunter by in the fake nuns outfit?

    it’s a tough call. I’m with pete, I’m staying home if given the choice.
    my experience was any way that it was always tougher getting back in to your own country rather than leaving.
    canada or mexico.
    so now it’s both ways.

  5. knuckleheadedliberal says:

    Well, I’ve been against the ridiculous security state right from the start. The attack of 9/11 scared me far less than the reaction we as a nation had to it. I know that I personally have been under a greater degree of scrutiny than the vast majority of people in my travel, in my purchases on line and by credit card, and most likely through my electronic communication. I’ve never had a strip or cavity search but Ive gone through more pat downs than I can count – and truth be told pat downs aren’t that big a deal.

    I do get a certain sense of schadenfreude from the outrage of so many middle Americans and Canadians who never have to deal with being profiled. Your outrage brings a little smile to my lips.

  6. Two Cents says:

    I usually get a thorough go over, pat down, but gladly never a probe.
    I smile in irony the whole while with the thoughts that while they are judging my book by it’s cover, a real target slipped through.
    I think returning vets should all be offered jobs at ports of entry.
    I think their sixth sense would be priceless, their experience invaluable.

  7. bill shaver says:

    Sounds like the implementation of policy recently enacted in OTTAWA …by HARPO THE MAGNIFICENTS GOVT.This is the result of last years lone wolf attacks on people in St Jean, & Ottawa….Sounds like war measures act is back with a vengance….opps…can i say that…MORE FEAR MONGERING ON THE WAY….where or where are the happy times in CANADA…LIKE IN THE BOBBY GIMBY SONG…LISTEN F YOU CAN….

    Expo 67: Bobby Gimby’s ‘Canada’ – Digital Archives – CBC Player…/ID/1554807414/‎Cached
    “The Pied Piper of Canada” leads a parade of children through the Expo grounds

    Bobby Gimby’s Canada Song – YouTube

    ► 2:26
    Mar 11, 2007 – 2 min – Uploaded by Picardy
    Expo 67 – Canada’s Centennial celebration song: C-A-N-A-D-A.

    Ca-na-da! – YouTube

    ► 2:30
    Mar 27, 2009 – 3 min – Uploaded by danielpegus
    Broadcast Date: May 8, 1967 The grounds of Expo are open for a tour, and who better to lead …

    Expo 67 Song Ca-na-da – YouTube

  8. Walker says:

    It’s all very well to talk of avoiding boarder crossings, but we all live within the 100-mile vicinity of the border within which INS feels free to stop and search anyone. We’ve been through INS checkpoints south of Tupper Lake.

    Hell of a world we live in these days!

  9. The Original Larry says:

    Having had several recent (last week) encounters with Border Patrol, Customs and TSA personnel, I would say that most of the enormous sums spent on screening people at airports & other points of entry are being wasted. There was no baggage inspection of any kind by Customs personnel upon re-entering the United States but the TSA “screening” as I prepared to board a domestic flight was rude, intrusive and ultimately pointless. Apparently, the TSA now checks people on a random basis and I was informed that I could pass right through the checkpoint without inspection. So that I would not be separated from my wife in the crowd, I asked if I could voluntarily submit to the inspection she was on line for. This so confounded the TSA personnel that I was metal detected and body scanned (twice) and my carry on unpacked and the items individually x rayed. Although the agent thoroughly checked my wallet (including partially removing the money and checking between each bill) nobody did or asked anything about the several electronic devices in my carry on, including asking me to turn any of them on to see if they were “real.” Bottom line? The security process, as currently conducted, is entirely random, as are the results. It is the result of throwing money at a problem without thinking the process all the way through. I wouldn’t mind if I thought there was some positive benefit, which there could and should be.

  10. bill shaver says:

    Nothing new at airport check points, but land crossings…gotta wonder.

    one more time!

    Expo 67: Bobby Gimby’s ‘Canada’ – Digital Archives – CBC Player…/ID/1554807414/‎Cached
    “The Pied Piper of Canada” leads a parade of children through the Expo grounds

    Bobby Gimby’s Canada Song – YouTube

    ► 2:26
    Mar 11, 2007 – 2 min – Uploaded by Picardy
    Expo 67 – Canada’s Centennial celebration song: C-A-N-A-D-A.

    Ca-na-da! – YouTube

    ► 2:30
    Mar 27, 2009 – 3 min – Uploaded by danielpegus
    Broadcast Date: May 8, 1967 The grounds of Expo are open for a tour, and who better to lead …

    Expo 67 Song Ca-na-da – YouTube

  11. knuckleheadedliberal says:

    OL, yes it is a huge waste of time money and effort, much more about the appearance of “making us safe” than actually making us safe. The fact is that we are pretty safe without all the TSA crap. All we need is paying attention to simple law enforcement tactics — like investigating people who want to learn how to fly a plane but not take off or land.

  12. bill shaver says:

    Precisely, saw same behavior in Quebec in 1970 over the FLQ crisis. Authorities acting like they were doing somthing, but all along knew where the criminals were hiding.

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